France challenges Google on right to be forgotten

Google is heading for a showdown with the French data protection regulator, which has threatened the company with penalties if it does not de-list certain personal information from its search results around the world.

The Commission nationale de l’informatique et des libertés (CNIL) said on Friday that Google has 15 days to carry out French delisting requests on all its domains, including Google.com. If the company fails to comply, it could face a financial sanction of up to €150,000, CNIL told POLITICO.

However, Google indicated that it will not comply with CNIL’s order, saying it will only carry out de-listing on services that are directed at European users.

The clash goes to the heart of the Internet’s jurisdictional problems, focusing as it does on the tension between national laws and a platform that is global and effectively borderless.

Under a year-old “right to be forgotten” ruling by the Court of Justice of the European Union, people can ask search engines operating in the EU to remove links to information about them that is “inaccurate, inadequate, irrelevant or excessive,” and the search engines must comply as long as is there is no public interest in keeping the links up.

However, while Google is complying with the ruling, the U.S. firm and Europe’s data protection regulators disagree about the extent of the de-listing.

The Article 29 Working Party, an umbrella group for the watchdogs, said last November that people’s right to de-listing could only be properly enforced by removing links from all of a search engine’s domains, as Google’s users could otherwise just visit a non-European domain to find the offending information.

Google’s advisory council, which included a range of experts hand-picked by the company, mostly disagreed. The council said in a report in February that global de-listing “may ensure more absolute protection of a data subject’s rights,” but Google’s users outside Europe had the right to access information under their own country’s laws.

Former German justice minister Sabine Leutheusser-Schnarrenberger, who was one of the members of the council, sided with the regulators in a dissenting opinion.

“Although the company has granted some of the requests, de-listing was only carried out on European extensions of the search engine and not when searches are made from ‘google.com’ or other non-European extensions,” CNIL said on Friday.

“In accordance with the CJEU judgement, the CNIL considers that in order to be effective, de-listing must be carried out on all extensions of the search engine and that the service provided by Google search constitutes a single processing.”

Google said in a statement: “We’ve been working hard to strike the right balance in implementing the European Court’s ruling, cooperating closely with data protection authorities. The ruling focused on services directed to European users, and that’s the approach we are taking in complying with it.”

Julia Powles, a researcher in technology law at the University of Cambridge, told POLITICO that the scope of de-listing requests should be considered on a case-by-case basis.

“The lack of subtlety by both the CNIL and Google prevents greater appreciation of the means and ends of data protection law, as well as its interactions with freedom of expression and access to information,” she said.

The European Commission has mostly stayed out of the fray as it is a matter for the courts (the ruling said that the 1996 data protection directive applied to search engines such as Google). However, Commission Vice-President Andrus Ansip said earlier this year that he personally agreed with the regulators.

“I think if a decision is made [and the] court case is closed, then it covers the whole company, not just some territories,” Ansip said at a Berlin event in February.

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Christopher Wilkinson

In terms of what I would expect as a ‘data subject’ in Europe, I think it is not correct to say that “The ruling focused on services directed to European users”. The ruling focused on the rights of the data subjects. CW

European citizens need legislation to protect our basic human rights guarantees to citizens in the European constitution that encapsulates this migration to the digital world if we do not programs like Google will continue to operate on the fringe of legality with impunity

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